THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS ALLEN NASSETTA, Defendant and Appellant.
No. A144049
First Dist., Div. Two.
Sept. 26, 2016.
2 Cal. App. 5th 699
Sejal H. Patel, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
MILLER, J.—Dеfendant Nicholas Allen Nassetta pleaded no contest to possession for sale of cocaine (
Nassetta contends the curfew condition is invalid under People v. Lent (1975) 15 Cal.3d 481 [124 Cal.Rptr. 905, 541 P.2d 545] (Lent) and unconstitutionаl. We agree the curfew condition is invalid under Lent, and modify the probation order to strike it.
FACTUAL AND PROCEDURAL HISTORY
Around 2:15 a.m. on March 18, 2014, California Highway Patrol officers observed a Nissan pickup truck straddling two lanes of northbound I-880 for an extended period before moving to a single lane.1 The officers had the truck pull over. Nassetta was the driver and sole occupant of the truck. One of the offiсers noticed Nassetta was perspiring significantly, and his face paled during the traffic stop. The officer saw a syringe sticking out of a duffel bag on the backseat of the truck. Nassetta was asked to get out of his truck, and the officer checked his arms. Nassetta‘s wrists were swollen and each wrist had fresh puncture marks associated with intravenous drug use. He told the officer he had used heroin in the previous two hours. Nassetta was placed under arrest and his truck was searched. In Nassetta‘s truck, an officer found multiple containers with white powdery substances, crystalline substances, and waxy substances—which Nassetta identified as cocaine, methamphetamine, and hash wax respectively—and paraphernalia for drug use: a scale, about 300 small plastic bags, and a notebook containing names and amounts owed or paid. A nine-millimeter semiautomatic firearm in a locked container was also recovered from the truck.
The Alameda County District Attorney filed a 14-count criminal cоmplaint against Nassetta alleging various drug, firearm, and driving offenses. In
At the sentencing hearing on November 20, 2014, the trial court suspended imposition of sentence and granted Nassetta formal probation for five years. Nassetta was ordered to serve 36 days in jail, but was awarded 36 days of presentence credits.
The probation officer‘s report recommended 18 terms and conditions of probation. Number 16 was “Abide by curfew limits as set by the court or the Probation Department (10:00 p.m. to 6:00 a.m.).” Nassetta‘s attorney objected to number 16, the curfew limit. He argued it was not part of the plea bargain, and it was “a substantial burden upоn an adult” unrelated to future criminality. He asserted that courts had allowed curfews “in young adults and gang cases,” but that in unpublished decisions, courts had reversed curfew limits for adults. He argued, “[D]rug dealing and drug possession is a 24/7 operation. I don‘t think that there‘s any cause to believe that it happens more frequently between the hours of 10:00 to 6:00 as оpposed to other hours.”
The trial court observed that in its experience, “about two-thirds of [DUI cases] happen in the middle of the night, and I see very few during daytime hours, and for that reason, it seems curfew is very closely related to the behavior in this case and the future criminality.” The court further stated that, in light of Nassetta‘s “significant substancе abuse problems, both with narcotics and with alcohol, curfew seems like a really reasonable and sensible idea.” The trial court imposed the curfew condition by marking a box on a preprinted probation form next to the condition, “Abide by curfew limits set by Probation or the Court (10:00 p.m. to 6:00 a.m.).”
DISCUSSION
Nassetta contends the curfew conditiоn is unreasonable under Lent, supra, 15 Cal.3d 481. We agree.
When granting probation, a trial court may impose “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.” (
In Lent, our Supreme Court set forth the criteria for assessing the validity of a condition of probation: Upon review, “[a] condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminаlity.’ ” (Lent, supra, 15 Cal.3d at p. 486.) “Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (Ibid.)
The Lent “test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379 [87 Cal.Rptr.3d 199, 198 P.3d 1].) We therefore consider the curfew condition with respect to each prong. Does the condition relate to the criminal offense at issue? Does the condition relate to conduct that is itself criminal? Is the condition reasonably related to preventing future criminality? (Id. at p. 380.) If the answer to any of these questions is “yes,” the condition is valid under Lent; if the answer to all of them is “no,” it is invalid. In this case, we conclude the answer to all the questions is “no.”
First, the curfew condition bears no relationship to the offenses Nassetta was convicted of. Neither possession of cocaine for sale nor driving under the influence requires the offense be committed at night. The mere fact that Nassetta was pulled over at night does not demonstrate a relationship between the curfew condition and the offenses he committed, and the Attorney General does not argue otherwise. Second, it is undisputed that it is not a crime for an adult to be outside between 10:00 p.m. and 6:00 a.m.
Having concluded the answer to the first two questiоns is “no,” we consider the third question, whether the curfew condition is reasonably related to preventing future criminality. Nassetta argues it is not and the trial court‘s reasoning was inadequate: “The court‘s anecdotal apportionment of DUI offense times cannot be a substitute for qualitative data or probabilities. If that evidence bоre legitimate weight in the court‘s analysis, then the court should have looked closely at holidays, sporting events, or concerts as evidence of a greater chance of DUI offenses at a given time. Merely noting, without factual or statistical predicate, that DUI‘s occur at night, is an insufficient basis for asserting deterrence.” We agree with Nassetta that there is no basis on this record to conclude a curfew is reasonably related to
The Attorney General responds that the curfew condition is related to preventing drug-related crimes in general because “drug crimes are more likely to occur under the cover of darkness.” She relies for this proposition on Solis v. Superior Court (1966) 63 Cal.2d 774 [48 Cal.Rptr. 169, 408 P.2d 945] (Solis), but the case is nothing like our case. In Solis, the California Supreme Court addressed the question whether there was good cause for a provision in a search warrant that the search could be made “at any time of the day or night” of a home where drug sales were allegedly occurring. (Id. at pp. 775-776.) In reaching its conclusion that there was good cause to permit a nighttime search, the court observed, “It is common knowlеdge, at least to those engaged in law enforcement, that heroin is the most dangerous of the illicit drugs; that heroin pushers are among the most dangerous of drug peddlers; and that heroin pushers are as active at night as during the day and probably more so.” (Id. at p. 776.) The observation that law enforcement in 1966 commonly knew “heroin pushers” were active during the day and “probably more so” at night sufficient to justify the particular nighttime search warrant at issue in Solis is hardly support for the Attorney General‘s broad assertion here that “drug crimes are more likely to occur under the cover of darkness.”2 Certainly, Solis does not suggest the curfew condition in this case is reasonably related to preventing Nassetta from committing drug-related crimes.
As the parties note, there is no California case law addressing whether a curfew is a valid probation condition under Lent for an adult convicted of
In State v. Donovan (Ct.App. 1977) 116 Ariz. 209 [568 P.2d 1107] (Donovan), the defendant was convicted in a court trial of possession of marijuana for sale and possession of a narcotic drug. (Id., 568 P.2d at p. 1108.) He was placed on probation, with conditions requiring him “to (1) live with his parents; (2) not be out after 10:00 p.m. for a period of eight months; (3) continue his education and seek employment and (4) not assoсiate with [a former codefendant].” (Id., at p. 1109.) The Arizona appellate court rejected the defendant‘s argument that these conditions “were not related to the offense which he committed.” (Ibid.) The court‘s entire discussion of the curfew condition is as follows: “We believe that the first three conditions contribute to both appellаnt‘s rehabilitation and the protection of the public. They provide for a modicum of supervision over appellant‘s activities and are intended both to prevent future criminal activity and to facilitate appellant‘s entry into a law-abiding society.” (Id., at p. 1110.)
Although the age of the defendant in Donovan is not mentioned, the requirements that he live with his parents and continue his eduсation suggest that he was young, likely still a teenager.3 But, here, Nassetta was 28 years old when he was placed on probation, and he was not ordered to live with his parents or continue his education. Thus, the facts of Donovan are distinguishable. Further, putting aside the defendant‘s apparent youth in Donovan, the case is unpersuasive because the court provided no analysis explaining how a curfew would “prevent future criminal activity.” (Donovan, supra, 568 P.2d at p. 1110.)
There was a dissent in Sprague. (Sprague, supra, 629 P.2d at p. 1329 (dis. opn. of Roberts, J.).) The dissenting judge reasoned: “Thе offense for which defendant was arrested was totally unrelated to her care of the child, which would, of course, more likely be required in the daytime than after 10:00 p.m. The court indicated it did not even know whether the child was living with defendant. While the altercation and defendant‘s subsequent arrest apparently occurred after 10:00 p.m., thе underlying event, a stop for driving while suspended, might occur at any time of day. There was no integral relationship between the offense and the hours during which defendant was barred from the streets. The curfew was thus not, in my mind, in any way related to defendant‘s offense. Second, the condition was not related to ‘public safety.’ There is no showing that defеndant was, or was likely to be, any more a threat to the public after 10:00 p.m. than at any other hour of the day. [¶] Lastly, the curfew was unrelated to defendant‘s likelihood of rehabilitation. While obviously disapproving of defendant‘s friends, the court did not forbid defendant from associating with them before 10:00 p.m., or in her own home or otherwise indoors аfter that hour.” (Id., at p. 1329, italics omitted (dis. opn. of Robert, J.).) We believe the dissent has the better argument, and decline to follow Sprague.
Finally, in Kominsky v. State (Fla.Dist.Ct.App. 1976) 330 So.2d 800, a jury found the defendant guilty of possession of marijuana, and the trial court placed him on probation and appointed his parents his “probation advisers.” (Id., at p. 801.) The court imposed probation conditions restricting thе defendant from driving more than 35 miles per hour, and subjecting him to a curfew of 8:00 p.m. to 6:00 a.m. (Ibid.) With respect to
Having rejected the out-of-state authority, we conclude the curfew condition here is not reasonably related to preventing future criminality. Since the curfew condition is not related to Nassetta‘s criminal offenses and it does not relate to conduct that is itself criminal, the curfew condition is invalid undеr Lent. Accordingly, we will strike the curfew condition imposed by the trial court. Because the condition is invalid under Lent, we do not reach Nassetta‘s constitutional argument.
DISPOSITION
The probation order is modified to strike the condition, “Abide by curfew limits set by Probation or the Court (10:00 p.m. to 6:00 a.m.).” In all other respects the judgment is affirmed.
Kline, P. J., and Richman, J., concurred.